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62d  Congress)  SENATE  (Document 

2d  Session      \  \    No.  122 


THE  CONSTITUTION  AND  ITS  MAKERS 


AN  ADDRESS 

DELIVERED  BEFORE 

THE  LITERARY  AND  HISTORICAL  ASSOCIATION 
OF  NORTH  CAROLINA 

AT 

RALEIGH,  N.  0.,  NOVEMBER  28,  1911 

BY 

HENRY  CABOT  LODGE 


DNiypjftSITYOirCAL] 

AT  LOS  ANGELES 

DEC  20  1933 

LlBRAR 


PRESENTED  BY  MR.  OVERMAN 
December  5,  1911. — Ordered  to  be  printed 


WASHINGTON 
1911 


THE  CONSTITUTION  AND  ITS  MAKERS. 


Mr.  Lodge  said: 

Before  this  society  and  on  such  an  occasion  to  speak  on  any  subject 
not  connected  with  the  history  of  our  common  country  would  hardly 
be  possible  and  would  certainly  not  be  fitting.  I  have,  therefore, 
chosen  a  subject  which  touches  the  history  of  the  Un;ted  States  at 
every  point.  I  shall  try  to  set  before  you  some  of  the  results  of  a 
great  work  in  which  your  State  and  mine  alike  took  part  a  century 
and  a  quarter  ago  and  which  possesses  an  interest  and  an  importance 
as  deep  and  as  living  to-day  as  at  the  moment  of  its  inception.  I 
shall  touch  upon  some  present  questions,  but  I  shall  speak  without 
the  remotest  reference  to  politics  or  parties,  for  my  subject  tran- 
scends both.  I  shall  speak  as  a  student  of  our  history  with  reverence 
for  the  past  and  with  a  profound  faith  in  the  future.  In  a  word,  I 
shall  speak  simply  as  an  American  who  loves  his  country  "now  and 
forever,  one  and  inseparable." 

A  little  less  than  twenty-five  years  ago  great  crowds  thronged  the 
streets  of  Philadelphia.  Men  and  women  were  there  from  all  parts 
of  the  United  States;  the  city  was  resplendent  with  waving  flags 
and  brilliant  with  all  the  decorations  which  ingenuity  could  suggest, 
while  the  mights  were  made  bright  by  illuminations  which  shone  on 
every  building.  Great  processions  passed  along  the  streets,  headed 
by  troops  from  the  thirteen  original  States,  marching  in  unusual 
order,  with  Delaware  at  the  head,  because  that  little  State  had  been 
the  first  to  accept  the  great  instrument  of  government  which  now, 
having  attained  its  hundredth  year,  was  celebrated  in  the  city  of  its 
birth.  Behind  the  famous  hall  where  independence  was  declared  an 
immense  crowd  listened  to  commemorative  speakers,  and  the  Presi- 
dent of  the  United  States,  a  Democrat,  honored  the  occasion  with 
his  presence  and  his  words. 

Two  years  later,  in  1889,  the  same  scenes  were  repeated  in  New 
York.  Again  the  cannon  thundered  and  again  flags  waved  above 
the  heads  of  the  multitude  gathered  in  the  streets,  through  which 
marched  a  long  procession,  both  military  and  civil,  headed  as  before 
by  the  representatives  of  the  original  thirteen  States.  Again,  at  a 
great  banquet,  addresses  were  delivered  and  once  more  the  President 
of  the  United  States,  this  time  a  Republican,  honored  the  occasion 
by  his  presence,  and  in  the  name  of  all  the  people  of  the  country 
praised  the  great  work  of  our  ancestors. 

In  Philadelphia  we  celebrated  the  one  hundredth  anniversary  of  the 
formation  of  the  Constitution  of  the  United  States.  In  New  York 
we  commemorated  the  one  hundredth  anniversary  of  the  inaugura- 
tion of  the  Government  which  that  Constitution  had  brought  into 
being.  Through  all  the  rejoicings  of  those  days,  in  every  spoken  and 
in  every  written  word,  ran  one  unbroken  strain  of  praise  for  the 
great  instrument  and  of  gratitude  to  the  men  who,  in  the  exercise  of 

3 


a  448783 


5*i 


^ 


4  THE   CONSTITUTION   AND   ITS    MAKERS. 

the  highest  wisdom,  had  framed  it  and  brought  it  forth.  All  men 
recalled  that  it  had  made  a  nation  from  thirteen  jarring  States; 
that  it  had  proved  in  its  interpretation  flexible  to  meet  new  conditions 
and  strong  to  withstand  injustice  and  wrong;  that  it  had  survived 
the  shock  of  civil  war;  and  that  under  it  liberty  had  been  pro- 
tected and  order  maintained.  The  paean  of  praiso  rose  up  from 
all  parts  of  tins  broad  land  unmarred  by  a  discordant  note.  Every- 
one agreed  with  Gladstone's  famous  declaration,  that  the  Consti- 
tution of  the  United  States  was  the  greatest  political  instrument 
ever  struck  off  on  a  single  occasion  by  the  minds  of  men.  We 
seemed,  indeed,  by  all  wethen  said  and  did  to  justify  those  foreign 
critics  who  reproached  us  for  our  blind  reverence  for  our  Constitu- 
tion and  our  almost  superstitious  belief  in  its  absolute  wisdom  and 
unexampled  perfections. 

Those  celebrations  of  the  framing  of  the  Constitution  and  of  the 
inauguration  of  the  Government  have  been  almost  forgotten.     More 
than  twenty  vears  have  come  and  gone  since  the  cheers  of  the  crowds 
which  then  filled  the  streets  of  New  York  and  Philadelphia— since 
the  reverberations  of    the  cannon  and  the  eloquent  voices  of   the 
orators  died  away  into  silence.     And  with  those  years,  not  very  many 
aftor  all,  a  change  seems  to  have  come  in  the  spirit  which  at  that  time 
pervaded  the  American  people  from  the  President  down  to  the  hum- 
blest citizen  in  the  land.     Instead  of  the  universal  chorus  of  praise  and 
gratitude  to  the  framers  of  the  Constitution  the  air  is  now  rent  with 
harsh  voices  of  criticism  and  attack,  while  the  vast  mass  of  the 
American  people,  still  believing  in  their  Constitution  and  their  Gov- 
ernment, look  on  and  listen,  bewildered  and  confused,  dumb  thus 
far  from  mere  surnrise,  and  deafened  by  the  discordant  outcry  so 
suddenly  raised  against  that  which  they  have  always  reverenced  and 
held    in   honor.     Many   excellent   persons    believe   apparently    that 
beneficent  results  can  be  attained  by  certain  proposed  alterations 
in    the  Constitution,  often,  I  venture   to  think,  without   examina- 
tion of  the  history  and  theory  of  government  and  without  measuring 
the  extent  or  weighing  the  meaning  of  the  changes  which  are  urged 
upon  us.     But  it  is  also  true  that  everyone  who  is  in  distress,  or  in 
debt,  or  discontented,  now  assails  the  Constitution,  merely  because 
such  is  the  present  passion.     Every  reformer  of  other  people's  mis- 
deeds—all of  that  numerous  class  which  is  ever  seeking  to  promote 
virtue  at  somebody  else's  expense — pause  in  their  labors  to  point 
out  the  supposed  shortcomings  of    our    National    Charter.     Every 
raw  demagogue,  every  noisy  agitator,  incapable  of  connected  thought 
and  seeking  his  own  advancement  by  the  easy  method  of  appealing 
to  envy,  malice,  and  all  uncharitablcness— those  unlovely  qualities 
in  human  nature  which  so  readily  seek  for  gratification  under  the 
mask  of  high  sounding  and  noble  attributes— all  such  people  now 
lift  their  hands  to  tear  down  or  remake  the  Constitution.     In  House 
and  Senate  one  can  hoar  attacks  upon  it  at  any  time  and  listen  to 
men  deriding  its  framers  and  their  work.     No  longer  are  we  criti- 
cised by  outsiders  for  having  a  superstitious  reverence  for  our  Con- 
stitution.    Quite  recently  I  read  an  article  by  an  English  member 
of   Parliament    (Mr.   L.   T.    Ilobhouse),   a  Liberal,    I    believe,   with 
Socialist  proclivities,  who  said  that  this  reproach  of  an  undue  yenera- 
Jion  for  the  Constitution  ought  no  longer  to  be  brought  against  us, 
because  beneficent  and  progressive  spirits  were  already  beginning  to 


THE   CONSTITUTION    AND   ITS   MAKEES.  5 

pull  it  to  pieces  and  were  seeking  to  modernize  it  in  conformity  with 
the  clamor  of  the  moment.  All  this  is  quite  new  in  our  history. 
We  have  as  a  people  deeply  reverenced  our  Constitution.  We  have 
realized  what  it  has  accomplished  and  what  protection  it  has  given 
to  ordered  freedom  and  individual  liberty.  Even  the  Abolitionists, 
when  they  denounced  the  Constitution  for  the  shelter  which  it  afforded 
to  slavery,  did  not  deny  its  success  in  other  directions,  and  their 
hostility  to  the  Constitution  was  one  of  the  most  deadly  weapons  used 
against  them. 

The  enmity  to  the  Constitution  and  the  attacks  upon  it  which 
have  developed  in  the  last  few  years  present  a  situation  of  the  utmost 
gravity.  If  allowed  to  continue  without  answer,  they  may  mislead 
public  opinion  and  produce  the  most  baneful  results.  The  people 
of  the  United  States  may  come  to  believe  that  all  these  attacks  are, 
in  a  measure  at  least,  true.  And  therefore  if  they  are  not  true, 
their  falsity  ought  to  be  shown.  Beside  the  question  of  the  main- 
tenance or  destruction  of  the  Constitution  of  the  United  States  all 
other  questions  of  law  and  policy  sink  into  utter  insignificance.  In 
its  presence  party  lines  should  disappear  and  all  sectional  differ- 
ences melt  away  like  the  early  mists  of  dawn  before  the  rising  sun. 
The  Constitution  is  our  fundamental  law.  Upon  its  provisions  rests 
the  entire  fabric  of  our  institutions.  It  is  the  oldest  of  written  con- 
stitutions. It  has  served  as  a  model  for  many  nations,  both  in  the 
Old  World  and  in  the  New.  It  has  disappointed  the  expectations 
of  those  who  opposed  it,  convinced  those  who  doubted,  and  won 
a  success  beyond  the  most  glowing  hopes  of  those  who  put  faith  in 
it.  Such  a  work  is  not  to  be  lightly  cast  down  or  set  aside,  or,  which 
would  be  still  worse,  remade  by  crude  thinkers  and  by  men  who 
live  only  to  serve  and  flatter  in  their  own  interest  the  emotion  of  the 
moment.  We  should  approach  the  great  subject  as  our  ancestors 
approached  it — simply  as  Americans  with  a  deep  sense  of  its  seri- 
ousness and  with  a  clear  determination  to  deal  with  it  only  upon  full 
knowledge  and  after  the  most  mature  and  calm  reflection.  The  time 
has  come  to  do  this,  not  only  here  and  now,  but  everywhere  through- 
out the  country. 

Let  us  first  consider  who  the  men  were  who  made  the  Constitution 
and  under  what  conditions  they  worked.  Then  let  us  determine 
exactly  what  they  meant  to  do — a  most  vital  point,  for  much  of  the 
discussion  to  which  we  have  been  treated  thus  far  has  proceeded 
upon  a  complete  misapprehension  of  the  purpose  and  intent  of  the 
framers  of  the  Constitution.  Finally,  let  us  bring  their  work  and 
their  purposes  to  the  bar  of  judgment,  so  that  we  may  decide  whether 
they  have  failed,  whether  in  their  theory  of  government  they  were 
right  or  wrong  then  and  now,  or  whether  their  work  has  stood  the 
test  of  time,  is  broad  based  on  eternal  principles  of  justice,  and,  if  rent 
or  mangled  or  destroyed,  would  not  in  its  ruin  bring  disaster  and 
woes  inestimable  upon  the  people  who  shall  wreck  their  great  inher- 
itance and,  like 

The  base  Indian,  throw  a  pearl  away, 
Richer  than  all  his  tribe. 

First,  then,  of  the  men  who  met  in  Philadelphia  in  May,  1787,  with 
doubts  and  fears  oppressing  them,  but  with  calm,  high  courage  and 
with  a  noble  aspiration  to  save  their  country  from  the  miseries  which 
threatened  it,  to  lead  it  out  from  the  wilderness  of  distractions  in 


6  THE   CONSTITUTION   AND   ITS   MAKEES. 

which  it  was  wandering  blind  and  helpless,  into  the  light,  so  that  the 
chaos,  hateful  alike  toGod  and  men,  might  be  ended  and  order  put  in 
its  place.  It  is  the  fashion  just  now  to  speak  of  the  framers  of  the 
Constitution  as  worthy,  able,  and  patriotic  persons  whom  we  are  proud 
to  have  embalmed  in  our  history,  but  toward  whom  no  enlightened 
man  would  now  think  of  turning  seriously  for  either  guidance  or 
instruction,  so  thoroughly  has  everything  been  altered  and  so  much 
has  intelligence  advanced.  It  is  commonly  said  that  they  dealt 
wisely  and  well  with  the  problems  of  their  day,  but  that  of  course 
they  knew  nothing  of  those  which  confront  us,  and  that  it  would  be 
worse  than  folly  to  be  in  any  degree  governed  by  the  opinions  of 
men  who  lived  under  such  wholly  different  conditions.  It  seems  to 
me  that  this  view  leaves  something  to  be  desired  and  is  not  wholly 
correct  or  complete.  I  certainly  do  not  think  that  all  wisdom  died 
with  our  fathers,  but  I  am  quite  sure  that  it  was  not  born  yesterday. 
I  fully  realize  that  in  saying  even  this  I  show  myself  to  be  what  is 
called  old  fashioned,  and  I  know  that  a  study  of  history,  which  has 
been  one  of  the  pursuits  of  my  life,  tends  to  make  a  man  give  more 
weight  to  the  teachings  of  the  past  than  it  is  now  thought  they 
deserve.  Yet,  after  all  allowance  is  made,  I  can  not  but  feel  that 
there  is  something  to  be  learned  from  the  men  who  established  the 
Government  of  the  United  States,  and  that  their  opinions,  the  result 
of  much  and  deep  reflection,  are  not  without  value,  even  to  the  wisest 
among  us. 

On  questions  of  this  character,  I  think,  their  ideas  and  conclusions 
are  not  lightly  to  be  put  aside;  for,  after  all,  however  much  we  may 
now  gently  patronize  them  as  good  old  patriots  long  since  laid  in 
their  honored  graves,  they  were  none  the  less  very  remarkable  men, 
who  would  have  been  eminent  in  any  period  of  history  and  might 
even,  if  alive  now,  attain  to  distinction.  Let  us  glance  over  the  list 
of  delegates  to  the  Constitutional  Convention  m  Philadelphia  in 
1787.  I  find,  to  begin  with,  that  their  average  age  was  43,  which  is 
not  an  extreme  senectitude,  and  the  ages  range  from  Franklin,  who 
was  81,  to  John  Francis  Mercer,  of  Virginia,  who  was  28.  Among 
the  older  men  who  were  conspicuous  in  the  convention  were  Frank- 
lin, with  his  more  than  80  years;  Washington,  who  was  55;  Roger 
Sherman,  who  was  66;  and  Mason  and  Wythe,  of  Virginia,  who  were 
both  61.  But  when  I  looked  to  see  who  were  the  most  active  forces 
in  that  convention,  I  found  that  the  New  Jersey  plan  was  brought 
forward  by  William  Paterson,  who  was  42;  that  the  Virginia  plan 
was  proposed  by  Edmund  Randolph,  who  was  34;  while  Charles 
Pinckney,  of  South  Carolina,  whose  plan  played  a  large  part  in  the 
making  of  the  Constitution,  was  only  29.  The  greatest  single  argu- 
ment, perhaps,  which  was  made  in  the  convention  was  that  of  Ham- 
ilton, who  was  30.  The  man  who  contributed  more,  possibly,  than 
any  other  to  the  daily  labors  of  the  convention  and  who  followed 
every  detail  was  Madison,  who  was  36.  The  Connecticut  compro- 
mise was  very  largely  the  work  of  Ellsworth,  who  was  42;  and  the 
committee  on  style,  which  made  the  final  draft,  was  headed  by 
Gouverneur  Morris,  who  was  35.  Let  us  note,  then,  at  the  outset 
that  youth  and  energy,  abounding  hope,  and  the  sympathy  for  the 
new  times  stretching  forward  into  the  great  and  uncharted  future, 
as  well  as  high  ability,  were  conspicuous  among  the  men  who  framed 
the  Constitution  of  the  United  States. 


THE   CONSTITUTION  AND  ITS   MAKEBS*  7 

Their  presiding  officer  was  Washington,  one  of  the  great  men  of  all 
time,  who  had  led  the  country  through  seven  years  of  war,  and  of 
whom  it  has  been  said  by  an  English  historian  that  "no  nobler  figure 
ever  stood  in  the  forefront  of  a  nation's  life."  Next  comes  Franklin, 
the  great  man  of  science,  the  great  diplomatist,  the  great  statesman 
and  politician,  the  great  writer;  one  of  the  most  brilliant  intellects  of 
the  eighteenth  century,  who  in  his  long  life  had  known  cities  and  men 
as  few  others  have  ever  known  them.  There  was  Hamilton,  one  of 
the  greatest  constructive  minds  that  modern  statesmanship  has  to 
show,  to  whose  writings  German  statesmen  turned  when  they  were 
forming  their  Empire  forty  years  ago  and  about  whom  in  these  later 
days  books  are  written  in  England,  because  Englishmen  find  in  the 
principal  author  of  the  Federalist  the  great  exponent  of  the  doctrines 
of  successful  federation.  There,  too,  was  Madison,  statesman  and  law- 
maker, wise,  astute,  careful,  destined  to  be,  under  the  Government 
which  he  was  helping  to  make,  Secretary  of  State  and  President. 
Roger  Sherman  was  there,  sagacious,  able,  experienced-  one  of  the 
leaders  of  the  Revolution  and  a  signer  of  the  Declaration  of  Inde- 
pendence, as  he  was  of  the  Constitution.  Great  lawyers  were  present 
m  Philadelphia  in  that  memorable  summer  of  1787,  such  men  as 
Ellsworth  and  Wilson  and  Mason  and  Wythe.  It  was,  in  a  word,  a 
very  remarkable  body  which  assembled  to  frame  a  constitution  for 
the  United  States.  Its  members  were  men  of  the  world,  men  of 
affairs,  soldiers,  lawyers,  statesmen,  diplomatists,  versed  in  history, 
widely  accomplished,  deeply  familiar  with  human  nature.  I  think 
that  without  an  undue  or  slavish  reverence  for  the  past  or  for  the 
men  of  a  former  generation,  we  may  fairly  say  that  in  patriotism  and 
in  intellect,  in  knowledge,  experience,  and  calmness  of  judgment,  these 
framers  of  the  Constitution  compare  not  unfavorably  with  those 
prophets  and  thinkers  of  to-day  who  decry  the  work  of  1787,  would 
seek  to  make  it  over  with  all  modern  improvements,  and  who  with 
unconscious  humor  declare  that  they  are  engaged  in  the  restoration 
of  popular  government. 

That  phrase  is  in  itself  suggestive.  That  which  has  never  existed 
can  not  do  restored.  If  popular  government  is  to  be  restored  in  the 
United  States  it  must  have  prevailed  under  the  Constitution  as  it  is, 
and  yet  those,  who  just  now  are  so  devoured  by  anxiety  for  the  rights  of 
the  people,  propose  to  effect  the  restoration  they  demand  by  changing 
the  very  Constitution  under  which  popular  government  is  admitted 
by  their  own  words  to  have  existed.  I  will  point  out  presently  the 
origin  of  this  confusion  of  thought.  It  is  enough  to  say  now  that  for 
more  than  a  century  no  one  questioned  that  the  government  of  the 
Constitution  was  in  the  fullest  sense  a  popular  government.  In  1863 
Lincoln,  in  one  of  the  greatest  speeches  ever  uttered  by  man,  declared 
that  he  was  engaged  in  trying  to  save  government  by  the  people. 
Nearly  thirty  years  later,  when  we  celebrated  the  one  hundredth 
anniversary  of  the  Constitution,  the  universal  opinion  was  still  the 
same.  All  men  then  agreed  that  the  Government  which  had  passed 
through  the  fires  of  civil  war  was  a  popular  government.  Indeed, 
this  novel  idea  of  the  loss  of  popular  government  which  it  is  proposed 
to  restore  by  mangling  the  Constitution  under  which  it  has  existed 
for  more  than  a  century  is  very  new;  in  fact,  hardly  ten  years  old. 

This  first  conception  of  our  Constitution  as  an  instrument  of  popu- 
lar government,  so  long  held  unquestioned,  was  derived  from  the 


8  THE   CONSTITUTION    AND   ITS    MAKERS. 

framers  of  the  Constitution  themselves.  They  knew  perfectly  well 
that  they  were  founding  a  government  which  was  to  be  popular  in  the 
broadest  sense.  The  theory  now  sedulously  propagated,  that  these 
creat  men  did  not  know  what  they  were  about,  or  wore  pretending  to 
do  one  thing  whilo  they  really  did  another,  is  one  of  the  most  fantastic 
delusions  with  which" agitators  have  ever  attempted  to  mislead  or 
perplex  the  public  mind.  The  makers  of  the  Constitution  may  have 
been  right  or  they  may  have  been  wrong  m  the  principles  upon  which 
thev  acted  or  in  the  work  they  accomplished,  but  they  knew  pre- 
cisely what  they  meant  to  do  and  why  they  did  it.  No  man  in  history 
ever  faced  facts  with  a  clearer  gaze  than  George  Washington,  and  when, 
after  the  adjournment  of  the  convention  he  said,  "We  have  raised  a 
standard  to  which  the  good  and  wise  can  repair;  the  event  is  in  the 
hands  of  God,"  he  labored  under  no  misapprehension  as  to  the  char- 
acter of  the  great  instrument  where  his  name  led  all  the  rest. 

It  is  the  fashion  to  say  that  since  then  great  changes  have  occurred 
and  wholly  new  conditions  have  arisen  of  winch  the  men  of  1787  could 
by  no  possibility  have  had  any  knowledge  or  anticipation.  This  is 
quite  true.  They  could  not  have  foreseen  the  application  of  steam 
to  transportation,  or  of  electricity  to  communication,  which  have 
wrought  greater  changes  in  human  environment  than  anythmg  which 
has  happened  to  man  since  those  dim,  prehistoric,  unrecorded  days 
when  some  one  discovered  the  control  of  fire,  invented  the  wheel,  and 
devised  the  signs  for  language,  masterpieces  of  intelligence  with 
winch  even  the  marvels  of  the  last  century  can  not  stand  comparison. 
The  men  of  the  Constitution  could  as  little  have  foreseen  what  the 
efTects  of  steam  and  electricity  would  be  as  they  could  have  anticipated 
the  social  and  economic  effects  of  these  great  inventions  or  the  rapid 
seizure  of  the  resources  of  nature  through  the  advances  of  science  and 
the  vast  fortunes  and  combinations  of  capital  which  have  thus  been 
engendered.  Could  they,  however,  with  prophetic  gaze  have  beheld 
in  a  mirror  of  the  future  all  these  new  forces  at  work,  so  powerful  as 
to  affect  the  very  environment  of  human  life,  even  then  they  would 
not,  I  think,  have  altered  materially  the  Constitution  which  they 
were  slowly  and  painfully  perfecting.  They  would  have  kept  on 
their  way,  Because  they  would  have  seen  plainly  what  is  now  too  often 
overlooked  and  misunderstood,  that  all  the  perplexing  and  difficult 
problems  born  of  these  inventions  and  of  the  changes,  both  social 
and  economic,  which  have  followed  were  subjects  to  be  dealt  with  by 
laws  as  the  questions  arose,  and  laws  and  policies  were  not  their  busi- 
ness. They  were  not  making  laws  to  regulate  or  to  affect  either 
social  or  economic  conditions.  Their  work  was  not  only  higher  but 
far  different.  They  were  laying  down  certain  great  principles  upon 
which  a  government  was  to  be  built  and  by  which  laws  and  policies 
were  to  be  tested  as  gold  is  tested  by  a  touchstone. 

Upon  the  work  in  which  they  were  engaged  social  and  economic 
changes  or  alterations  in  international  relations  and  political  condi- 
tions'^ no  matter  how  profound  or  unforeseen — and  none  could  have 
been  more  profound  or  more  unforeseen  than  those  which  have 
actually  taken  place — had  little  bearing  or  effect.  They  were  framing 
a  government,  and  human  nature  was  the  one  great  and  controlling 
element  in  their  problem.  Human  nature,  with  its  strength  and  its 
weakness,  its  passions  and  emotions  so  often  dominating  its  reason, 
its  selfish  desires  and  its  nobler  aspirations,  was  the  same  then  as  now. 


THE   CONSTITUTION    AND   ITS   MAKERS.  » 

There  is  no  factor  so  constant  in  human  affairs  as  human  nature 
itsc?lf  and  in  its  essential  attributes  it  is  the  same  to-day  as  it  was 
among  the  builders  of  the  Pyramids.     As  to  the  principles  of  govern- 
ment winch  the  framers  of  the  Constitution  wished  to  adapt  to  that 
portion  of  human  nature  which  had  gained  a  foothold  on  the  North 
American  Continent  there  was  little  to  be  discovered.     There  is  no 
greater  fallacy  than  to  suppose  that  new  and  fundamental  principles 
of  government  are  constantly  to  be  invented  and  wrought  out.     Laws 
change  and  must  change  with  the  march  of  humanity  across  the  cen- 
turies as  it  alteration  finds  in  the  conditions  about  it,  but  fundamental 
principles  and  theories  of  government  are  all  extremely  old.     The  very 
words  in  which  we  must  express  ourselves  when  we  speak  of  forms  of 
government  are  all  ancient.     Let  me  recall  a  few  facts  winch  every 
schoolboy  knows  and  which  anyone  can  obtain  by  indulging  in  that 
too  much  neglected  exercise  of  examining  a  dictionary.     Anarchy, 
for  example,  is  the  Greek  word  "rule"  or  "command"  with  the  alpha 
privative  in  the  form  of  "an"  prefixed,  and  means  the  state  of  a  people 
without  government.     Monarchy  is  the  rule  of  one;  oligarchy  is  the 
rule  of  a  few.     We  can  not  state  what  our  own  Government  is  with- 
out using  the  word  "democracy,"  winch  is  merely  the  Greek  word 
A-qfioKparzta  and  means  popular  government  or  the  rule  of  the  people. 
Aristocracy,  ideally  as  Aristotle  had  it,  is  the  rule  of  the  best,  but 
even  in  those  days  it  meant  in  practice  the  rule  of  the  best-born  or 
nobles.     Plutocracy  is  the  rule  of  the  rich;  autocracy,  self-derived 
power — the  unlimited  authority   of  a  single  person.     Ochlocracy  is 
the  rule  of  the  multitude,  for  winch  we  have  tried  to  substitute  the 
hideous  compound  "mobocracy."     As  with  the  words,  so  with  the 
things  of  winch  the  words  are  the  symbol;  the  people  who  invented  the 
one  had  already  devised  the  other.     The  words  all  carry  us  back  to 
Greece,  and  all  these  various  forms  of  government  were  well  known  to 
the  Greeks  and  had  been  analyzed  and  discussed  by  them  with  a  bril- 
liancy, a  keenness,  and  an  intellectual  power  which  have  never  been 
surpassed.     If  you  will  read  The  Republic  and  The  Laws  of  Plato  and    j 
supplement  that  study  by  an  equally  careful  examination  of  what  ] 
Aristotle  has  to  say  on  government  you  will  find  that  those  great  ■ 
minds  have  not  only  influenced  human  thought  from  that  time  to 
this,  but  that  there  is  little  winch  they  left  unsaid.     It  is  the  fashion,  i 
for  example,  to  speak  of  socialism  as  if  it  were  something  new,  a  rath- 
ant  discovery  of  our  own  time  which  is  to  wipe  away  all  tears.     The 
truth  is  that  it  is  very  old,  as  old  in  essence  as  human  nature,  for  it 
appeals  to  the  strong  desire  in  every  man  to  get  something  for  nothing 
and  to  have  someone  else  bear  his  burdens  and  do  his  work  for  him. 
As  a  system  it  is  amply  discussed  by  Plato,  who,  in  The  Republic, 
urges  measures  which  go  to  great  extremes  in  tins  direction.     In  the 
fourth  century  of  our  era  a  faction  called  the  Circumcellions  were 
active  as  socialists  and  caused  great  trouble  within  the  weakening 
Empire  of  Rome.     The  real  difficulty  historically  with  the  theories  of 
socialism  is  not  that  they  are  new,  but  that  they  are  very,  very  old, 
and  wherever  they  have  been  put  in  practical  operation  on  a  large 
scale  they  have  resulted  in  disorder,  retrogression,  and  in  the  arrest  of 
civilization  and  progress.     Broadly  stated,  there  have  been  only  two 
marked  additions  to  theories  or  principles  of  government  since  the 
days  of  the  Greeks  and  the  Romans.     One  is  the  representative  prin- 
ciple developed  by  the  people  of  England  in  the  "Mother  of  Parlia- 


10  THE   CONSTITUTION   AND   ITS   MAKERS. 

ments"  and  now  spread  all  over  the  world,  and  the  other  is  the 
system  of  federation  on  a  large  scale  embracing  under  a  central  gov- 
ernment of  defined  powers  a  union  of  sovereign  and  self-governing 
States  which  the  world  owes  in  its  bold  and  broad  application  to  the 
men  who  met  at  Philadelphia  to  frame  our  Constitution  in  1787. 

With  these  exceptions  the  framers  of  the  Constitution  dealt  with 
the  theories  and  systems  of  government  which  have  been  considered, 
discussed,  and  experimented  with  for  more  than  two  thousand  years 
and  which  are  to-day,  a  century  later,  the  same  as  in  1787,  un- 
changed and  with  no  additions  to  their  number.  In  order  to  reach 
the  essence  of  what  the  makers  of  the  Constitution  tried  and  meant 
to  do,  which  it  is  most  important  to  know  and  reflect  upon  deeply 
before  we  seek  to  undo  their  work,  let  us  begin  by  dismissing  from 
our  consideration  all  that  is  unessential  or  misleading.  Let  us  lay 
aside  first  the  word  republic,  for  a  republic  denotes  a  form  and  not  a 

Erinciple.  A  republic  may  be  democratic  like  ours,  or  an  autocracy 
ke  that  of  Augustus  Caesar,  or  an  oligarchy  like  Venice,  or  a  changing 
tyranny  like  some  of  those  visible  in  South  America.  The  word  has 
become  as  inaccurate,  scientifically  speaking,  as  the  word  monarchy 
which  may  be  in  reality  a  democracy  as  in  England  or  Norway,  con- 
stitutional as  in  Italy,  or  a  pure  despotism  as  in  Russia.  Let  us 
adhere  in  this  discussion  to  the  scientifically  exact  word  "democ- 
racy." Next  let  us  dismiss  all  that  concerns  the  relations  of  the 
States  to  the  National  Government.  Federation,  as  I  have  said, 
was  the  great  contribution  of  the  Philadelphia  convention  to  the 
science  of  government.  The  framers  of  the  Constitution,  if  they  did 
not  invent  the  principle,  applied  it  on  such  a  scale  and  in  such  a 
way  that  it  was  practically  a  discovery,  a  venture  both  bold  and  new, 
as  masterly  as  it  was  profoundly  planned.  With  the  love  of  prece- 
dents characteristic  of  their  race  they  labored  to  find  authority  and 
example  in  such  remote  and  alien  arrangements  as  the  Achean 
League  and  the  Amphictyonic  Council,  but  the  failure  of  these  prec- 
edents as  such  was  the  best  evidence  of  the  novelty  and  magnitude 
of  their  own  design.  Their  work  in  this  respect  has  passed  through 
the  ordeal  of  a  great  war;  it  has  been  and  is  to-day  the  subject  of 
admiration  and  study  on  the  part  of  foreign  nations,  and  not  even 
the  most  ardent  reformer  of  this  year  of  grace  would  think,  in  his  efforts 
to  restore  popular  government,  of  assailing  the  Union  of  Sovereign 
States.  Therefore  we  may  pass  by  this  great  theme  which  was  the 
heaviest  part  of  the  task  of  our  ancestors. 

In  the  same  way  we  may  dismiss,  much  as  it  troubled  the  men  of 
1787,  all  that  relates  to  the  machinery  of  government,  such  as  the 
electoral  college,  the  tenure  of  office,  the  methods  of  electing  Senators 
and  Representatives,  and  the  like.  These  matters  are  important; 
many  active  thinkers  in  public  life  seek  to  change  them,  not  for  the 
better,  as  I  believe,  but  none  the  less  these  provisions  concern  only  the 
mechanism  of  government ;  they  do  not  go  to  the  root  of  the  matter, 
they  do  not  anect  the  fundamental  principles  on  which  the  Govern- 
ment rests. 

By  making  these  omissions  we  come  now  to  the  vital  point,  which 
is,  What  kind  of  a  government  did  the  makers  of  the  Constitution 
intend  to  establish  and  how  did  they  mean  to  have  it  work?  They 
were,  it  must  be  remembered,  preparing  a  scheme  of  government  for 
a  people  peculiarly  fitted  to  make  any  system  of  free  institutions  work 


THE   CONSTITUTION   AND   ITS    MAKERS.  11 

well.  The  people  of  the  United  Colonies  were  homogeneous.  They 
came  in  the  mam  from  Great  Britain  and  Ireland,  with  the  addition  of 
the  Dutch  in  New  York,  of  some  Germans  from  the  Palatinate  and  of  a 
few  French  Huguenots,  whose  ability  and  character  were  as  high  as  their 
numbers  were  relatively  small.  But  an  overwhelming  majority  of  the 
American  people  in  1787  were  of  English  and  Scotch  descent  and  they, 
as  well  as  the  others  from  other  lands,  were  deeply  imbued  with  all  those 
principles  of  law  which  were  the  bulwarks  of  English  liberty.  In  this 
new  land  men  had  governed  themselves  and  there  was  at  that  moment 
no  people  on  earth  so  fit  for  or  so  experienced  in  self-government  as 
the  people  of  the  Thirteen  Colonies.  Their  colonial  governments 
were  representative  and  in  essence  democratic.  They  became  entirely 
so  when  the  Revolution  ended  and  the  last  English  governor  was  with- 
drawn. In  the  four  New  England  Colonies  local  government  was  in 
the  hands  of  the  town  meetings,  the  purest  democracies  then  or  now 
extant,  but  it  is  best  to  remember,  what  the  men  of  1787  well  knew, 
that  these  little  democracies  moved  within  fixed  bounds  determined 
by  the  laws  of  the  States  under  which  they  had  their  being. 

For  such  a  people,  of  such  a  character,  with  such  a  past  and  such 
habits  and  traditions  only  one  kind  of  government  was  possible,  and 
that  was  a  democracy.  The  makers  of  the  Constitution  called  their 
new  Government  a  Republic  and  they  were  quite  correct  in  doing 
so,  for  it  was  of  necessity  republican  in  form.  But  they  knew  that 
what  they  were  establishing  was  a  democracy.  One  has  but  to 
read  the  debates  to  see  how  constantly  present  that  fact  was  to  their 
minds.  Democracy  was  then  a  very  new  thing  in  the  modern  world. 
As  a  system  it  had  not  been  heard  of,  except  in  the  fevered  struggles 
of  the  Italian  City  Republics,  since  the  days  of  Rome  and  Greece, 
and  although  the  convention  knew  perfectly  well  that  they  were 
estabhshing  a  democracy  and  that  it  was  inevitable  that  they  should 
do  so,  some  of  them  regarded  it  with  fear  and  all  with  a  deep  sense 
of  responsibility  and  caution.  The  logical  sequence  as  exhibited  in 
history  and  as  accepted  by  the  best  minds  of  the  eighteenth  century, 
struggling  to  give  to  men  a  larger  freedom,  was  democracy — anarchy — 
despotism.  The  makers  of  the  Constitution  were  determined  that 
so  far  as  in  them  lay  the  American  Republic  should  never  take  the 
second  step,  never  revolve  through  the  vicious  circle  which  had  cul- 
minated in  empire  in  Rome,  in  the  tyrants  of  the  Grecian  and  the 
despots  of  the  Italian  Cities  which  in  their  turn  had  succumbed  to 
the  absolutism  of  foreign  rulers. 

The  vital  question  was  how  should  this  be  done;  how  should 
they  establish  a  democracy  with  a  strong  government — for  after 
their  experience  of  the  confederation  they  regarded  a  weak  govern- 
ment with  horror — and  at  the  same  time  so  arrange  the  government 
that  it  should  be  safe  as  well  as  strong  and  free  from  the  peril  of 
lapsing  into  an  autocracy  on  the  one  hand,  or  into  disorder  and 
anarchy  on  the  other?  They  did  not  try  to  set  any  barrier  in  the 
way  of  the  popular  will,  but  they  sought  to  put  effective  obstacles 
in  the  path  to  sudden  action  which  was  impelled  by  popular  passion, 
or  popular  whim,  or  by  the  excitement  of  the  moment.  They  were 
the  children  of  the  "Great  Rebellion"  and  the  "Blessed  Revolu- 
tion" in  the  England  of  the  seventeenth  century,  and  they  were 
steeped  in  the  doctrine  of  limiting  the  power  of  the  King.  But  here 
they  were  dealing  with  a  sovereign  who  could  not  be  limited,  for 


12  THE    CONSTITUTION   AND   ITS   MAKERS. 

while  a  kins:  can  be  limited  by  transferring  his  power  to  the  people, 
when  the  people  are  sovereign  their  powers  can  not  be  transferred 
to  anybody.  There  is  no  one  to  transfer  them  to,  and  if  they  are 
taken  away  the  democracy  ceases  to  exist  and  another  government, 
fundamentally  different,  takes  its  place. 

The  makers  of  the  Constitution  not  only  knew  that  the  will  of 
the  people  must  be  supreme,  but  they  meant  to  make  it  so.  That 
which  tney  also  aimed  to  do  was  to  make  sure  that  it  was  the  real 
will  of  the  people  which  ruled  and  not  their  momentary  impulse, 
their  well-considered  desire  and  determination  and  not  the  passion 
of  the  hour,  the  child,  perhaps,  of  excitement  and  mistake  inflamed 
by  selfish  appeals  and  terrorized  by  false  alarms.  The  main  object, 
therefore,  was  to  make  it  certain  that  there  should  be  abundant 
time  for  discussion  and  consideration,  that  the  public  mind  should  be 
thoroughly  and  well  informed  and  that  the  movements  of  the  ma- 
chinery of  government  should  not  be  so  rapid  as  to  cut  off  due 
deliberation.  With  this  end  in  view  they  established  with  the  utmost 
care  a  representative  system  with  two  chambers  and  an  executive 
of  large  powers,  including  the  right  to  veto  bills.  They  also  made  the 
amendment  of  the  Constitution  a  process  at  once  slow  and  difficult, 
for  they  intended  that  it  should  be  both,  and  indeed  that  it  should 
be  impracticable  without  a  strong,  determined,  and  lasting  public 
sentiment  in  favor  of  change. 

Finally  they  established  the  Federal  judiciary,  and  in  the  Supreme 
Court  of  the  United  States  they  made  an  addition  to  the  science  of 
government  second  only  in  importance  to  their  unequaled  work  in 
the  development  of  the  principle  of  federation.  That  great  tribunal 
has  become  in  the  eyes  of  the  world  the  most  remarkable  among  the 
many  remarkable  solutions  devised  by  the  Convention  of  17S7  for 
the  settlement  of  the  gravest  governmental  problems.  John  Mar- 
shall, with  the  intellect  of  the  jurist  and  the  genius  of  the  statesman, 
saw  the  possibilities  contained  in  the  words  which  called  the  court 
into  being.  By  his  interpretation  and  that  of  his  associates  and 
their  successors  the  Constitution  attained  to  flexibility  and  escaped 
the  rigidity  which  then  and  now  is  held  up  as  the  danger  and  the 
defect  of  a  written  instrument.  In  their  hands  the  Constitution 
has  been  expanded  to  meet  new  conditions  and  new  problems  as  they 
have  arisen.  In  their  hands  also  the  Constitution  has  been  the  pro- 
tection of  the  rights  of  States  and  the  rights  of  men,  and  laws  which 
violated  its  principles  and  its  provisions  have  been  set  aside. 

By  making  the  three  branches  of  the  Government,  the  executive, 
the  legislative,  and  the  judicial,  entirely  separate  and  yet  coordinate 
and  by  establishing  a  representative  system  and  creating  a  Supreme 
Court  of  extraordinary  powers  the  framors  of  the  Constitution 
believed  that  they  had  made  democracy  not  only  all  powerful  but  at 
the  same  time  safe  and  that  they  had  secured  it  from  gradual  con- 
version into  autocracy  on  the  one  hand  and  from  destruction  by  too 
rapid  motion  and  too  quick  response  to  the  passions  of  the  moment 
on  the  other.  If  ever  men  were  justified  by  results  they  have  been. 
The  Constitution  in  its  development  and  throughout  our  history  has 
surpassed  the  hopes  of  its  friends  and  utterly  disappointed  the  pre- 
dictions and  the  criticisms  of  its  foes.  Under  it  the  United  States  has 
grown  into  the  mighty  Republic  we  see  to-day.  New  States  have  come 
into  the  Union,  vast  territories  have  been  acquired,  population  and 


THE  CONSTITUTION   AND  ITS   MAKERS.  13 

wealth  have  increased  to  a  degree  which  has  amazed  the  world,  and 
life,  liberty,  and  property  have  been  guarded  beneath  the  flag  which 
is  at  once  the  symbol  of  the  country  and  of  the  Constitution  under 
which  the  Nation  has  risen  to  its  high  success.  Such  results  would 
seem  to  be  a  potent  argument  in  favor  of  the  instrument  of  gov- 
ernment through  which  they  have  been  achieved.  But  to  argue 
from  results  seems  just  now  out  of  fashion.  Actual  accomplish- 
ment it  would  appear  is  nothing.  According  to  the  new  dispensa- 
tion our  decision  must  be  made  on  what  is. promised  for  the  future, 
not  on  what  has  been  done  in  the  past.  Under  this  novel  doctrine, 
as  I  have  observed  it,  we  are  to  be  guided  only  by  envy  and  discon- 
tent and  are  to  act  exclusively  on  the  general  principle  that  what- 
ever is  is  wrong. 

What,  then,  is  the  plan  by  which  popular  government,  which 
existed  under  the  Constitution  for  more  than  a  century  and  which 
has  been  mysteriously  lost  during  the  past  few  years,  is  to  be  restored 
to  us  ?  It  is  proposed,  to  put  it  in  a  few  words,  to  remove  all  the  bar- 
riers which  the  makers  of  the  instrument  established  in  order  to  pre- 
vent rash,  hasty,  and  passionate  action  and  to  secure  deliberation, 
consideration,  and  due  protection  for  the  rights  of  minorities  and  of 
individuals.  This  is  to  be  accomplished  in  two  ways,  by  emasculat- 
ing the  representative  system  through  the  compulsory  initiative  and 
referendum  and  by  breaking  down  the  courts  through  the  recall. 
These  are  the  changes  by  which  it  is  intended  to  revive  popular  gov- 
ernment. Incidentally  they  strike  at  the  very  heart  of  the  Consti- 
tution as  the  framers  planned  and  made  it,  for  they  will  convert  the 
deliberate  movement  of  the  governmental  machinery,  by  which  its 
makers  intended  to  secure  to  democracy  both  permanence  and  suc- 
cess, into  an  engine  which  starts  at  the  touch  of  an  electric  button, 
which  is  as  quick  in  response  as  a  hair-trigger  pistol  and  as  rapid  in 
operation  as  a  self-cocking  revolver.  These  new  and  precious  ideas 
are  of  a  ripe  age;  in  fact  they  have  passed  many  hundreds  of  years 
beyond  the  century  fixed  by  Dr.  Johnson  for  the  establishment  of  a 
literary  reputation  at  a  point  where  it  might  be  intelligently  dis- 
cussed.    Let  us  therefore  consider  and  criticize  them. 

The  compulsory  initiative  and  the  compulsory  referendum  need 
not  detain  us  long,  for  the  effect  of  those  devices  is  obvious  enough. 
The  entire  virtue  or  the  entire  vice — each  of  us  may  use  the  word 
he  prefers— of  these  schemes  rests  in  the  word  "compulsory."  The 
initiative  without  compulsion  is  complete  in  the  right  of  petition 
secured  by  the  first  of  the  first  ten  amendments  to  the  Constitution, 
which  really  constituted  a  bill  of  rights.  The  right  of  petition 
became  the  subject  of  bitter  controversy  at  a  later  time  and  was 
vindicated  once  for  all  by  John  Quincy  Adams's  great  battle  in  its 
behalf,  more  than  three-quarters  of  a  century  ago.  There  are  few 
instances  where  petitions  representing  a  genuine  popular  demand 
have  not  met  a  response  in  action,  whether  in  Congress  or  in  the  State 
legislatures;  still  fewer  where  respectful  attention  and  consideration 
have  not  been  accorded  to  them.  But  the  responsibility  for  action 
and  the  form  such  action  should  take  has  rested  with  the  repre- 
sentative body.  When  the  initiative  is  made  compulsory  a  radical 
.  change  is  effected.  A  minority,  sometimes  a  small  minority  of  the 
voters,  always  a  small  minority  of  the  people,  can  compel  the  legis- 
lature to  pass  a  law  and  submit  it  to  the  voters  even  when  a  very 


14  THE    CONSTITUTION   AND   ITS   MAKERS. 

large  majority  of  the  people  neither  ask  for  nor,  so  far  as  the  evi- 
dence goes,  desire  it.  In  this  way  all  responsibility  is  taken  from 
the  representative  body  and  they  become  mere  clerks  for  drafting 
and  recording  laws,  poor  puppets  who  move  mechanically  when 
some  irresponsible  outsiders  twitch  the  strings.  It  is  the  substi- 
tution of  government  by  factions  and  fractions  for  government  by 
the  people.  The  representative  body  as  hitherto  constituted  repre- 
sented the  whole  people.  Under  the  new  plan  it  is  to  be  merely  the 
helpless  instrument  or  a  minority,  perhaps  a  very  small  minority,  of 
the  voters. 

The  voluntary  referendum  has  always  existed  in  this  country.  In 
the  National  Government,  owing  to  our  dual  or  Federal  form,  the  refer- 
endum on  constitutional  amendments  is  necessarily  made  to  the  States 
and  it  has  never  been  suggested  for  the  laws  of  the  United  States, 
owing  to  both  physical  and  constitutional  difficulties.  In  the  States 
the  referendum  has  always  been  freely  used,  not  only  for  constitu- 
tions and  constitutional  amendments  but  for  laws,  especially  for 
city  charters,  local  franchises,  and  the  like.  But  if,  on  the  demand  of 
a  minority  of  the  voters,  the  referendum  is  made  compulsory,  all  re- 
sponsibility vanishes  from  the  representative  body.  The  representa- 
tive no  longer  seeks  to  represent  the  whole  people  or  even  his  own 
constituency,  but  simply  votes  to  refer  everything  to  the  voters,  and 
covers  himself  completely  by  pointing  to  the  compulsory  referendum. 
On  the  other  hand,  the  voters  are  called  upon  to  legislate.  Of  the 
mass  of  measures  submitted  they  know  and  can  know  nothing.  Ex- 
perience shows  that  in  all  referendums  a  large  proportion  of  the  voters 
decline  to  vote.  Whether  this  is  due  to  indifference  or  to  lack  of  in- 
formation the  result  is  the  same.  It  proves  that  this  system  demands 
from  the  voters  what  the  most  intelligent  voters  in  the  world  are  unable 
to  give.  They  are  required  to  pass  upon  laws,  many  of  which  they 
have  neither  time  nor  opportunity  to  understand,  without  deliberation 
and  without  any  discussion  except  what  they  can  gather  from  the 
campaign  orator,  who  is,  as  a  rule,  interested  in  other  matters,  or  from 
an  occasional  article  in  a  newspaper.  They  can  not  alter  or  amend. 
They  must  vote  categorically  "yes"  or  "no."  The  majority  either 
fails  to  vote,  and  the  small  and  interested  minority  carries  its  measure, 
or  the  majority,  in  disgust,  votes  down  all  measures  submitted,  good 
and  bad  alike,  because  they  do  not  understand  them  and  will  not  vote 
without  knowing  what  their  votes  mean. 

The  great  laws  which,  both  in  England  and  the  United  States, 
have  been  the  landmarks  of  freedom  and  made  ordered  liberty  pos- 
sible were  not  passed  and  never  could  have  been  perfected  and  passed 
in  such  a  way  as  this.  This  new  plan  is  spoken  of  by  its  advocates 
as  progressive.  As  a  matter  of  fact,  it  is  the  reverse  of  progressive, 
it  is  reactionary.  Direct  legislation  by  popular  vote  was  familiar, 
painfully  familiar,  to  Greece  and  Rome.  In  both  it  led  through 
corruption,  violence,  and  disorder  to  autocracy  and  despotism.  The 
direct-vote  system  also  proved  itself  utterly  incapable  of  the  govern- 
ment of  an  extended  empire  and. of  large  populations.  Where  gov- 
ernment by  direct  vote  miserably  failed,  representative  government, 
after  all  deductions  have  been  made,  has  brilliantly  succeeded.  The 
development  of  the  principle  and  practice  of  representative  govern- 
ment was,  as  I  have  already  pointed  out,  the  one  great  contribution 
of  modern  times  to  the  science  of  government.     It  has  shown  itself 


THE   CONSTITUTION   AND   ITS    MAKERS.  15 

capable  of  preserving  popular  government  and  popular  rights  without 
the  violence  and  corruption  which  resulted  of  old  in  anarchy  and 
despotism  and  at  the  same  it  has  proved  its  adaptability  to  the  man- 
agement of  large  populations  and  the  efficient  government  of  great 
empires.  Representative  government  was  an  enormous  advance 
over  government  by  the  direct  vote  of  the  forum,  the  agora,  or  the 
market  place,  which  had  preceded  it,  and  which  had  gone  down  in 
disaster.  It  is  now  proposed  to  abandon  that  great  advance  and  to 
return  to  the  ancient  system  with  its  dark  record  of  disorder  and 
failure.  This  is  not  progress.  It  is  retreat  and  retrogression.  It 
is  the  abandonment  or  a  great  advance  and  a  return  to  that  which  is 
not  only  old  and  outworn,  but  which  history  and  experience  have 
alike  discredited. 

Look  now  for  a  moment  at  representative  government  as  we  our- 
selves have  known  it.  Let  us  not  forget,  in  the  first  place,  that  the 
Congress  of  the  United  States  under  the  Constitution  has  been  in 
continuous  existence  for  more  than  120  years;  that  with  the  single 
exception  of  the  "Mother  of  Parliaments"  it  is  much  the  oldest 
representative  body  of  a  constitutional  character  now  existing  in  tht> 
world.  Let  us  also  remember  that  the  history  of  the  American 
Congress  is  in  large  part  the  history  of  the  United  States,  and  that  we 
are  apt  to  be  proud  of  that  history  as  a  whole  and  of  the  many  great 
things  we  as  a  people  have  accomplished.  Yet  whatever  praise  his- 
tory accords  to  the  Congress  of  the  United  States  in  the  past  the  Con- 
gress of  the  moment  and  the  members  of  that  body  in  either  branch 
receive  but  little  commendation  from  their  contemporaries.  This  is 
perhaps  not  unnatural,  and  it  certainly  has  always  been  customary. 
Legislative  bodies  have  rarely  touched  the  popular  imagination  or 
appeared  in  a  dramatic  or  picturesque  attitude.  The  Conscript 
Fathers,  facing  in  silence  the  oncoming  barbarians  of  Gaul;  Charles 
the  First,  attempting  to  arrest  the  five  members;  the  Continental 
Congress  adopting  the  Declaration  of  Independence;  the  famous  Oath 
of  the  Tennis  Court  are  almost  the  only  instances  which  readily  occur 
to  one 's  mind  of  representative  and  legislative  bodies  upon  whom  for 
a  brief  instant  has  rested  the  halo  of  heroism  and  from  which  comes  a 
strong  appeal  to  the  imagination.  The  men  who  fight  by  land  and 
sea  rouse  immediate  popular  enthusiasm,  but  a  body  of  men  engaged 
in  legislation  does  not  and  can  not  offer  the  fascination  or  the  attrac- 
tion which  are  inseparable  from  the  individual  man  who  stands 
forth  alone  from  the  crowd  in  any  great  work  of  life,  whether  of  war 
or  peace. 

We  may  accept  without  complaint  this  tendency  of  human  nature, 
but  I  think  every  dispassionate  student  of  history,  as  well  as  every 
man  who  has  had  a  share  in  the  work  of  legislation,  may  rightfully 
deprecate  the  indiscriminate  censure  and  the  consistent  belittling 
which  pursue  legislative  bodies.  This  attitude  of  mind  is  not  confined 
to  the  United  States.  The  press  of  England  treats  its  Parliament 
severely  enough,  although  on  the  whole  with  more  respect  than  is  the 
case  with  the  American  press  in  regard  to  the  American  Congress. 
But  running  through  English  novels  and  essays  we  find  as  a  rule  the 
same  sneer  at  the  representatives  of  the  people  as  we  do  here.  Very 
generally,  both  in  this  country  and  abroad,  those  who  write  for  the 
public  seem  to  start  with  the  proposition  that  to  be  a  Member  of 
Congress  or  a  member  of  Parliament,  or  a  member  of  the  Chamber  of 


16  THE   CONSTITUTION   AND   ITS   MAKERS. 

Deputies  in  France  implies  some  necessary  inferiority  of  mind  or 
character.     I  do  not  desire  to  be  rash  or  violent,  but  I  think  this 
theory  deserves  a  moment's  examination  and  is  perhaps  open  to  some 
doubt.     As  Mr.  Reed  once  said,  it  is  a  fair  inference  that  a  man  who 
can  impress  himself  upon  200,000  people,  or  upon  the  whole  popula- 
tion of  a  great  State,  sulliciently  to  induce  them  to  send  him  to  the 
House  or°Senate  has    something  more  than  ordinary  qualities  and 
something  more  than  ordinary  force.     Then,  again,  as  Edmund  Burke 
remarked,  you  can  not  draw  an  indictment  against  a  whole  people, 
nor,  I  may  add,  can  you  draw  an  indictment  against  an  entire  class. 
There  are  good  men  and  bad  men  in  business  and  in  the  professions, 
in  the  ministry,  in  medicine,  in  law,  and  among  scholars.     Virtue  is 
not  determined  by  occupation.     There  are,  I  repeat,  good  and  bad 
men  in  every  profession  and  calling,  among  high  and  low,  rich  and 
poor,  and  the  honest  men  who  mean  to  do  right  largely  preponderate, 
tor  if  they  did  not  the  whole  social  structure  would  come  crashing  to 
the  ground.     What  is  true  of  business  and  the  professions  is  true  of 
Congress.     There  are  good  and  bad  men  in  public  life,  and  the  pro- 
portion of  good  to  bad,  I  believe,  compares  favorably  with  that  of  any 
other  occupation.     Public  men  live  in  the  fierce  light  which  beats 
upon  them  as  upon  the  throne,  a  Ught  never  fiercer  or  more  pitiless 
than  now,  and  for  this  reason  their  shortcomings  are  made  more  glar- 
ing and  their  virtues  by  contrast  more  shadowed  than  in  private  life. 
This  is  as  it  should  be,  for  the  man  who  does  wrong  in  private  life  is 
far  less  harmful  than  the  public  servant  who  is  false  to  his  trust.     To 
inflict   upon   the  public  servant   who  is   a  wrongdoer  the  severest 
reprobation  is  necessary  for  the  protection  of  the  community,  but 
for  this  very  reason  we' should  be  extremely  careful  that  no  reproba- 
tion should'be  visited  unjustly  on  any  public  man.     It  is  an  evil  thing 
to  betray  the  public  trust,  but  it  is  an  equally  evil  thing  to  pour  whole- 
sale condemnation  upon  the  head  of  every  man  in  public  life,  good  and 
bad  alike.     That  which  sutlers  most  from  an  injustice  like  this  in  the 
long  run  is  not  the  public  servant  who  has  been  unfairly  dealt  with,  for 
the°individual  passes  quickly,  but  the  country  itself.     After  all,  the 
voters  make  the  Representative.     If  he  is  not  of  the  highest  type,  he 
appears  to  be  that  which  the  majority  prefers.     Wholesale  criticism 
and  abuse  of  the  Representatives  reflect  more  on  the  constituencies,  if 
we  stop  to  consider,  than  on  those  whom  the  constituencies  select  to 
represent  them.    Indiscriminate  condemnation  and  equally  indiscrimi- 
nate belittling  of  the  men  who  make  and  execute  our  laws,  whether  in 
State  or  Nation,  is  not  only  a  reflection  upon  the  American  people 
but  is  a  blow  to  the  United  States  and  every  State  in  it.     They  help 
the  guilty  to  escape  and  injure  the  honest  and  the  innocent.     They 
destroy  the  people's  confidence  in  their  own  Government  and  lower 
the  country  in  the  eyes  of  foreign  nations. 

The  Congress  of  the  United  States  embodies  the  representative 
principle.  The  principle  of  representation,  I  repeat,  has  been 
the  great  contribution  of  the  English-speaking  race  to  the  science 
and  practice  of  government.  The  Greeks  and  the  Romans,  let  me 
say  once  more,  had  pure  democracy  and  legislation  by  direct  vote  in 
theory,  at  least,  and  we  have  but  to  read  Plato's  Republic  and  The 
Laws  to  learn  the  defects  of  the  system  in  use  in  Athens.  Greece 
failed  to  establish  an  empire;  she  touched  the  highest  peaks  of  civ- 
ilization, and  finally  went  to  pieces  politically  beneath  the  onset  of 


THE   CONSTITUTION    AND   ITS   MAKERS.  17 

Rome.  Rome  established  a  great  empire,  but,  after  years  of  bloody 
struggles  between  aristocracy  and  democracy,  it  ended  in  a  simple 
despotism.  The  free  cities  of  Italy  oscillated  between  anarchy  and 
tyranny,  only  to  fall  victims  in  the  end  to  foreign  masters.  In 
Florence  they  had  elections  every  three  months  and  a  complication 
of  committees  and  councils  to  interpret  the  popular  will.  Yet  the 
result  was  the  Medicis  and  the  Hapsburgs. 

It  is  also  to  be  remembered  that  the  representative  principle  has 
been  coincident  with  political  liberty.  Whatever  its  shortcomings 
or  defects,  and,  like  all  things  human,  it  has  its  grave  defects,  it 
none  the  less  remains  true  that  the  first  care  of  every  "strong  man," 
every  "savior  of  society,"  every  "man  on  horseback,"  of  every  auto- 
crat, is  either  to  paralyze  or  to  destroy  the  representative  principle. 
It  may  be  that  the  representative  principle  is  not  the  cause  of  polit- 
ical liberty,  but  there  can  be  no  question  whatever  that  the  two  have 
always  gone  hand  in  hand  and  that  the  destruction  of  one  has  been 
the  signal  for  the  downfall  of  the  other.  The  Congress  of  the  United 
States  and  the  legislatures  of  the  several  States  embody  the  repre- 
sentative principle.  By  that  principle  your  laws  have  been  made 
and  the  republican  form  of  government  sustained  for  more  than  a 
century.  Whatever  its  shortcomings,  it  has  maintained  the  Govern- 
ment of  the  United  States  and  upheld  law  and  order  throughout  our 
borders. 

The  framers  of  our  Government  separated  the  executive  from  the 
legislative  branch.  They  deemed  both  essential  to  freedom.  The 
constitution  of  my  State  declares  that  the  government  it  establishes 
is  to  be  a  government  of  laws  and  not  of  men;  a  noble  principle  and 
one  worthy  of  fresh  remembrance.  With  such  a  history,  and  typi- 
fying as  it  does  the  great  doctrines  which  were  embodied  in  the 
Declaration  of  Independence,  the  Constitution  of  the  United  States, 
and  the  institutions  of  England,  it  may  fairly  be  asked  that  if  the 
representative  principle  must  be  criticized,  as  it  should  be,  with 
severity  when  it  errs,  it  should  also  be  treated  with  that  absolute 
justice  which  is  not  only  right  in  the  abstract  but  which  is  essential 
to  the  maintenance  of  law,  order,  and  free  government,  to  human 
progress  and  to  the  protection  of  the  weak,  even  as  the  fathers 
designed  that  it  should  be.  When  we  blame  its  failures  let  us  not 
forget  its  services.  They  have  broadened  freedom  down  from  prece- 
dent to  precedent.  They  shine  across  those  pages  of  history  which 
tell  the  great  story  of  the  advance  of  liberty  and  of  the  ever-widening 
humanity  which  seeks  to  make  the  world  better  and  happier  for 
those  who  most  need  happiness  and  well-being.  In  beneficent  results 
for  the  people  at  large  no  other  form  of  government  ever  attempted 
can  compare  with  it  for  a  moment. 

The  worst  feature  of  the  compulsory  initiative  and  referendum  lies 
therefore  in  the  destruction  of  the  principle  of  representation.  Power 
without  responsibility  is  a  menace  to  freedom  and  good  government. 
Responsibility  without  power  is  inconceivable,  for  no  man  in  his 
senses  would  bear  such  a  burden.  But  when  responsibility  and  power 
are  both  taken  away,  whether  from  the  executive  or  the  represen- 
tatives, the  result  is  simple  inanition.  No  man  fit  by  ability  and 
character  to  be  a  representative  would  accept  the  office  under  such 
humiliating  conditions.     Those  who  accepted  it  would  do  so  for  the 


18  THE    CONSTITUTION    AND   ITS    MAKEBS. 

pocuniary  reward  which  the  office  carried  and  would  sink  rapidly 
into  mere  machines  of  record,  neither  knowing  nor  caring  what  they 
did.  With  a  representative  body  thus  reduced  to  nothingness  we 
are  left  with  the  people,  armed  only  with  their  votes,  and  with  an 
executive  who  has  necessarily  absorbed  all  the  real  powers  of  the 
State.  This  situation  is  an  old  story  and  has  always  ended  in  the 
same  way.  It  presents  one  of  those  rare  cases  in  which  the  teach- 
ing of  history  is  uniform.  When  the  representative  principle  has 
departed  and  only  its  ghost  remains  to  haunt  the  Capitol,  liberty  has 
not  lingered  long  beside  its  grave.  The  rise  of  the  representative 
principle  and  its  spread  to  new  lands  to-day  marks  the  rise  of  popular 
government  everywhere.  Wherever  it  has  been  betrayed  or  cast 
down  the  government  has  reverted  to  despotism.  When  representa- 
tive government  has  perished  freedom  has  not  long  survived. 

Most  serious,  most  fatal  indeed  are  the  dangers  threatened  by  the 
insidious  and  revolutionary  changes  which  it  is  proposed  to  make  in 
our  representative  system,  upon  which  the  makers  of  the  Constitu- 
tion relied  as  one  of  the  great  buttresses  of  the  political  fabric  which 
was  to  insure  to  popular  government,  success  and  stability.  Yet  even 
these  changes  are  less  ruinous  to  the  body  politic,  to  liberty  and  order 
than  that  which  proposes  to  subject  judges  to  the  recall.  No  graver 
question  has  ever  confronted  the  American  people. 

The  men  who  framed  the  Constitution  were  much  nearer  to  the 
time  when  there  was  no  such  thing  as  an  independent  judiciary  than 
we  are  now.  The  bad  old  days,  when  judges  did  the  bidding  of  the 
King,  were  much  more  vivid  to  them  than  to  us.  What  is  a  common- 
place to  us  was  to  them  a  comparatively  recent  and  a  hardly  won 
triumph.  The  fathers  of  some  of  those  men — the  grandfathers  of 
all — could  recall  Jeffreys  and  the  "Bloody  Assize."  They  knew  well 
that  there  could  be  no  real  freedom,  no  security  for  personal  liberty, 
no  justice,  without  independent  judges.  It  was  for  this  reason  that 
they  established  the  judiciary  of  the  United  States  with  a  tenure 
which  was  to  last  during  good  behavior  and  made  them  irremovable 
except  by  impeachment.  The  Supreme  Court  then  created  and  the 
judiciary  which  followed  have,  as  I  have  already  said,  excited  the 
admiration  of  the  civilized  world.  The  makers  of  the  Constitution 
believed  that  there  should  be  no  power  capable  of  deflecting  a  judge 
from  the  declaration  of  his  honest  belief,  no  threat  of  personal  loss, 
no  promise  of  future  emolument,  which  could  be  held  over  him  in 
order  to  sway  his  opinion.  This  conviction  was  ingrained  and  born 
with  them,  as  natural  to  them  as  the  air  they  breathed,  as  vital  as 
their  personal  honor.  How  could  it  have  been  otherwise  ?  The  inde- 
pendence of  the  judiciary  is  one  of  the  great  landmarks  in  the  long 
struggle  which  resulted  m  the  political  and  personal  freedom  of  the 
English-speaking  people.  The  battle  was  fought  out  on  English  soil. 
If  you  will  turn  to  the  closing  scenes  of  Henry  IV,  you  will  find  there 
one  of  the  noblest  conceptions  of  the  judicial  office  in  the  olden  time 
ever  expressed  in  literature.  It  was  written  in  the  days  of  the  last 
Tudor  or  of  the  first  Stuart,  in  the  time  of  the  Star  Chamber,  of  judges 
who  decided  at  the  pleasure  of  the  King  and  when  Francis  Bacon, 
Lord  Chancellor  of  England,  took  bribes  or  gifts.  Yet  lofty  as  is  the 
conception,  you  will  see  that  Shakespeare  regarded  the  judge  as 
embodying  the  person,  the  will,  and  the  authority  of  the  King. 


THE   CONSTITUTION    AND   ITS    MAKERS.  19 

We  all  know  how  the  first  two  Stuarts  used  the  courts  to  punish 
their  enemies  and  to  prevent  the  assertion  of  political  rights  which 
are  now  such  commonplaces  that  the  fact  that  they  were  ever  ques- 
tioned is  forgotten.  The  tyranny  of  the  courts  was  one  of  the  chief 
causes  which  led  to  the  great  rebellion,  and  out  of  that  great 
rebellion,  when  the  third  Stuart  had  been  restored,  came  the 
habeas  corpus  act,  which  has  done  more  to  protect  per- 
sonal liberty  than  any  act  ever  passed.  But  the  second  Charles 
and  the  second  James  had  learned  nothing  as  to  the  judges. 
They  expected  them  to  do  their  bidding  when  the  King  had  any 
interest  at  stake,  and  under  the  last  Stuart  the  courts  reached  a  very 
low  point  and  the  legal  history  of  the  time  is  characterized  by  the 
evil  name  of  Jeffreys.  When  the  lawyers  went  to  pay  their  homage 
to  William  of  Orange,  they  were  headed  by  Sergt.  Maynard,  then 
90  years  of  age.  "Mr.  Sergeant,"  said  the  prince,  "you  must  have 
survived  all  tlie  lawyers  of  your  standing."  "Yes,  sir,"  said  the  old 
man,  "and,  but  for  Your  Highness,  I  should  have  survived  the  laws 
too."  The  condition  of  the  courts  was  indeed  one  of  the  strongest  of 
the  many  bitter  grievances  which  wrought  the  Revolution  that  placed 
William  of  Orange  on  the  English  throne.  In  the  famous  bill  of 
rights  there  is  no  provision  in  regard  to  the  courts  and  it  is  not  quite 
clear  why  it  was  omitted,  although,  apparently,  it  was  due  to  an  over- 
sight. In  any  event  it  was  not  forgotten.  It  was  brought  forward 
more  than  once  in  Parliament,  but  William  announced  that  he  would 
not  assent  to  any  act  making  the  judges  independent  of  the  Crown. 
As  his  reign  drew  toward  its  close,  however,  he  signified  that  al- 
though he  would  veto  a  separate  act  he  would  accept  the  indepen- 
dence of  the  judiciary  if  provided  for  in  the  act  of  settlement  which 
was  to  determine  the  succession  to  the  throne  of  England.  There- 
fore we  find  in  the  act  of  settlement  the  clause  which  declares  that 
the  judges  shall  hold  office  during  good  behavior — "quamdiu  se 
bene  gesserint" — and  shall  be  removable  only  on  the  request  of 
both  houses  of  Parliament. 

It  is  necessary  to  pause  a  moment  here  and  consider  briefly  the 
provision  of  the  act  of  settlement  for  the  removal  of  judges  on  an 
address  by  the  houses,  because  it  has  been  most  incorrectly  used  by 
persons  ignorant  probably  of  its  history  as  a  precedent  justifying  the 
recall.  The  clause  was  mserted  not  lor  the  purpose  of  controlling 
the  judges  but  to  protect  them  still  further  against  the  power  of  the 
Crown  by  which  they  had  hitherto  been  dominated.  The  history  of  the 
clause  since  its  enactment  demonstrates  what  its  purpose  was  as  well 
as  the  fulfillment  of  that  purpose  in  practice.  During  the  two  cen- 
turies which  have  elapsed  since  William  III  gave  his  assent  to  the  act 
there  has  been,  so  far  as  I  can  learn,  only  one  removal  on  address, 
that  of  Sir  Jonah  Barrington,  an  Irish  judge,  in  1806,  more  than  a 
hundred  years  ago.  There  have  been  several  cases  where  removal 
was  petitioned  for,  but  Barrington's  was,  I  think,  the  only  one  in 
which  the  demand  was  successful.  The  procedure  employed  shows 
that  there  is  no  resemblance  whatever  between  the  removal  of  a  judge 
upon  the  address  of  the  lawmaking  body  and  the  popular  recall. 
They  are  utterly  different,  instituted  for  different  purposes,  and  the 
former  furnishes  in  reality  a  strong  argument  against  the  latter.  In 
all  tho  cases  of  removal  or  attempted  removal  by  address  of  Parlia- 
ment the  accused  judge  was  carefully  tried  before  a  special  committee 


20  THE   CONSTITUTION    AND   ITS    MAKERS. 

of  each  house;  he  could  be  heard  at  the  bar  of  either  house,  he  could 
and  did  employ  counsel,  and  could  summon  and  cross-examine  wit- 
nesses. This  process  is  as  far  removed  from  the  recall  as  the  zenith 
from  the  nadir,  for  under  the  recall  the  accused  judge  has  no  oppor- 
tunity to  summon  or  cross-examine  witnesses,  to  appear  by  counsel, 
or  to  be  properly  heard  and  tried.  He  is  obliged  under  the  recall  to 
make  an  appeal  by  the  usual  political  methods  and  at  the  same  time 
to  withstand  another  candidate,  while  he  is  forced  to  seek  a  hearing 
from  audiences  ignorant  of  the  law  and  inflamed  perhaps  against  him 
by  passion  and  prejudice.  lie  has  no  chance  whatever  of  a  fair  trial. 
Some  of  our  States  borrowed  this  provision  of  the  act  of  settlement 
when  they  formed  their  constitutions.  My  own  State  of  Massachu- 
setts was  one  of  them.  The  power  has  been  but  rarely  exercised  by 
the  legislature  in  the  hundred  and  thirty  years  which  have  passed 
since  our  constitution  was  adopted,  but  it  so  happened  that  when  I  was 
in  the  legislature  a  case  occurred,  and  I  was  a  member  of  the  committee 
on  the  judiciary  to  whom  the  petitions  were  referred.  The  accused 
judge  was  tried  as  elaborately  and  fairly  as  he  could  have  been  by  any 
court  or  by  the  Senate  if  he  had  been  impeached.  He  had  counsel, 
he  summoned  and  cross-examined  witnesses,  and  the  trial,  for  it  was 
nothing  less,  occupied  weeks.  The  committee  reported  in  favor  of 
removal,  but  the  house  rejected  the  committee's  report.  Some  years 
later,  after  a  similar  trial,  the  address  passed  both  houses  and  the 
judge  was  removed  by  the  governor  for  misdemeanors  and  mal- 
feasance in  office.  A  mere  statement  of  the  procedure  shows  at 
once  that  the  removal  by  address  is  simply  a  summary  form  of 
impeachment  with  no  relation  or  likeness  to  the  recaU.  Removal  by 
address  is  no  more  like  the  recall  than  impeachment  is.  If  successful, 
they  all  result  in  the  retirement  of  the  judge  accused,  but  there  the 
resemblance  ends.  The  makers  of  the  Constitution  did  not  follow  the 
act  of  settlement  and  adopt  the  removal  on  address.  They  no  doubt 
perceived  its  advantages,  because  it  made  possible  the  removal  of  a 
judge  incapacitated  by  insanity  or  age  or  disease  without  inflicting 
upon  him  the  stigma  of  an  impeachment,  but  they  also  saw  that 
the  removal  by  address  might  be  used  for  political  and  personal 
reasons,  of  which  one  instance  occurred  in  my  own  State,  and  they 

Crobably  determined  that  the  risk  of  its  abuse  outweighed  any  possi- 
le  benefit  which  might  flow  from  its  judicious  exercise. 
They  placed  their  courts  as  far  as  they  could  on  the  great  heights 
of  justice,  above  the  gusts  of  popular  passion.  They  guarded  them 
in  every  possible  way.  They  knew' that  judges  were  human  and  there- 
fore fallible.  They  knew  that  the  courts  would  move  more  slowly 
than  popular  opinion  or  than  Congress,  but  they  felt  equally  sure  that 
they  would  in  the  end  follow  that  public  opinion  which  was  at  once 
settled  and  well  considered.  All  this  they  did  because  all  history  and 
especially  the  history  and  tradition  of  their  own  race  taught  them  that 
the  strongest  bulwark  of  individual  freedom  and  of  human  rights  was 
to  be  found  ultimately  in  an  independent  court,  the  corner  stone  of  all 
liberty.  Their  ancestors  had  saved  the  judges  from  the  Crown.  They 
would  not  retrace  their  steps  and  make  them  subject  to  the  anger  or 
the  whim  of  anyone  else. 

They  wished  men  to  be  free, 
As  much  from  mobs  as  kings, 
From  you  as  me. 


THE   CONSTITUTION   AND  ITS   MAKERS.  21 

The  problem  which  they  then  solved  has  in  no  wise  changed.  The 
independence  of  the  judiciary  is  as  vital  to  free  institutions  now  as 
then.  The  system  which  our  forefathers  adopted  has  worked  admi- 
rably and  has  commanded  the  applause  of  their  children  and  of  foreign 
nations,  who  Bacon  tells  us  are  a  present  posterity.  Now  it  is  pro- 
posed to  tear  this  all  down  and  to  replace  the  decisions  of  the  court 
with  the  judgment  of  the  market  place.  If  I  may  borrow  a  phrase 
from  the  brilliant  speech  made  recently  by  Mr.  Littleton  in  the  House, 
it  is  intended  to  substitute  "government  by  tumult  for  government 
by  law. 

Those  who  advocate  this  revolution  in  our  system  of  government 
seem  to  think  that  a  judgeshould  be  made  responsive  to  the  popular  will, 
to  the  fleeting  majority  of  one  day  which  may  be  a  minority  the  next. 
They  would  make  their  judges  servile,  and  servile  judges  are  a  menace 
to  freedom,  no  matter  to  whom  their  servitude  is  due.  They  talk  of  a 
judge's  duty  to  his  constituents.  A  judge  on  the  bench  has  no  con- 
stituents and  represents  no  one.  He  is  there  to  administer  justice. 
He  is  there  not  to  make  laws,  but  to  decide  what  the  law  is.  He  must 
know  neither  friend  nor  foe.  He  is  there  to  declare  the  law  and  to  do 
justice  between  man  and  man. 

The  advocates  of  the  recall  seem  to  believe  that  with  subservient 
judges  glancing  timidly  to  right  and  left  to  learn  what  voters  think, 
instead  of  looking  steadfastly  at  tb.3  tables  of  the  law,  the  poor  will 
profit  and  the  rich  will  suffer;  that  the  individual  will  win  and  the 
corporation  lose;  that  the  powerful  will  be  crushed  and  the  weak  will 
triumph,  while  the  sword  of  the  recall  hangs  over  the  head  of  the 
judicial  Damocles.  If  even  this  were  true,  nothing  could  be  more 
fatal.  A  judge  must  know  neither  rich  nor  poor,  neither  strong  nor 
weak.  He  must  know  only  law  and  justice.  He  must  never  listen 
to  Bassanio's  appeal,  "To  do  a  great  right,  do  a  little  wrong."  But 
the  theory  is  in  reality  most  lamentably  false.  No  man  fit  to  be  a 
judge  would,  with  few  exceptions,  take  office  under  the  recall.  In 
the  end  the  bench  would  be  filled  by  the  weak  and  the  unscrupulous. 
The  weak  would  make  decisions  to  curry  favor  and  hold  votes.  The 
unscrupulous  would  use  their  brief  opportunity  to  assure  their  own 
fortunes,  and  that  assurance  could  come  only  from  the  rich  and  the 
powerful,  who  would  thus  control  the  decisions.  For  the  American 
court  we  should  substitute  the  oriental  cadi,  with  the  bribe  giver 
whispering  in  his  ear.  If  a  criminal  happened  to  belong  to  some 
large  and  powerful  organization  in  whose  interest  the  crime  was  com- 
mitted he  would  have  little  to  fear  from  a  court  where  a  judge  subject 
to  the  recall  presided.  We  should  have  courts  like  those  ruled  by  the 
Camorra  in  the  days  of  the  Neapolitan  Bourbons  except  that  the 
subservience  of  the  judge  would  be  insured  by  fear  of  the  recall 
instead  of  by  dread  of  assassination.  The  result  would  be  the  same 
and  certain  criminals  would  become  a  privileged  class  and  commit 
their  crimes  with  impunity. 

In  one  of  the  noblest  passages  of  his  letter  to  the  sheriffs  of  Bristol 
Edmund  Burke  says: 

The  poorest  being  that  crawls  on  earth  contending  to  save  itself  from  injustice  and 
oppression  is  an  object  respectable  in  the  eyes  of  God  and  man. 

Without  the  independent  judge  those  words  could  never  have  been 
written,  for  before  the  independent  judge  alone  could  the  poorest 


22  THE    CONSTITUTION   AND   ITS   MAKERS. 

bring  hope  to  contend  against  injustice.  Judges,  of  course,  are  human 
and  therefore  err.  1  know  well  that  there  have  been  one  or  two  great 
cases  where  the  decision  of  the  lughest  court  traveling  beyond  its  prov- 
ince has  been  reversed  and  swept  away  by  the  overwhelming  force  of 
public  opinion  and  the  irresistible  current  of  events.  I  know  only  too 
well  that  we  sufTer  from  the  abuse  of  technicalities,  from  delays  which 
are  often  a  denial  of  justice,  and  that  the  methods  of  our  criminal  law 
are  in  many  States  a  disgrace  to  civilization.  But  all  these  delays 
and  abuses  and  miscarriages  of  justice  are  within  the  reach  of  Congress 
and  legislatures,  and  these  evils  can  be  remedied  by  statute  whenever 
public  opinion  demands  a  reform.  Their  continued  existence  is  our 
own  fault.  Yet  when  all  is  said  the  errors  of  the  highest  courts  are 
few  and  the  abuses  and  shortcomings  to  which  I  have  referred  can 
be  cured  by  our  own  action.  In  the  great  mass  of  business,  in  the 
hundreds  of  trials  which  go  on  day  by  day  and  year  by  year,  justice 
is  done  and  the  rights  of  all  protected.  We  may  declare  with  truth 
that  in  the  courts  as  we  have  known  them  the  poor,  the  weak,  the 
helpless  have  found  protection  and  sometimes  their  only  defense. 
A  mob  might  thunder  at  the  gates,  money  might  exert  its  utmost 
power,  but  there  in  the  courtroom  the  judge  could  see  only  the  law 
and  justice.  The  safeguard  of  the  rights  and  liberties  of  minorities 
and  individuals,  of  the  weak  and  above  all  of  the  unpopular,  as  a 
rule,  has  been  found  only  in  the  court.  And  now  it  is  proposed  to 
undo  all  this  and  to  make  the  judges  immediately  dependent  on  the 
will  of  those  upon  whom  they  must  pass  judgment.  If  the  framers 
of  the  Constitution  were  alive  to-day,  they  would  not  find  a  single  new 
condition  to  affect  their  faith  in  an  independent  judiciary.  They 
would  decide  now,  as  they  decided  then.  Are  we  ready  to  reverse 
their  judgment  and  open  the  door  to  the  flood  of  evils  which  will 
rush  into  the  State  as  they  always  have  rushed  in  when  in  times  past 
the  courts  were  controlled  by  an  outside  power? 

The  destruction  of  an  independent  judiciary  carries  with  it  every- 
thing else,  but  it  only  illustrates  sharply  the  general  theory  pursued 
by  the  makers  of  the  Constitution.  They  established  a  democracy, 
and  they  believed  that  a  democracy  would  be  successful;  but  they 
also  believed  that  it  could  succeed  solely  through  forms  and  methods 
which  would  not  make  it  impossible  for  the  people  to  carry  on  their 
own  government.  For  this  reason  it  was  that  they,  provided  against 
hasty  action,  guarded  against  passion  and  excitement,  gave  ample 
room  for  the  cooler  second  thought,  and  arranged  that  the  popular 
will  should  be  expressed  through  representative  and  deliberative 
assemblies  and  the  laws  administered  and  interpreted  through  inde- 
pendent courts.  Those  who  would  destroy  their  work  talk  contin- 
ually about  trusting  the  people  and  obeying  the  people's  will.  But 
this  is  not  what  they  seek.  The  statement  as  they  make  it  is  utterly 
misleading.  That  for  which  they  really  strive  is  to  make  the  courts 
and  the  Congress  suddenly  and  rapidly  responsive  to  the  will  of  a 
majority  of  the  voters.  It  matters  not  that  it  may  be  a  narrow,  an 
ephemeral,  or  a  fluctuating  majority.  To  that  temporary  majority, 
which  the  next  year  may  be  changed  to  a  minority,  the  Congress  and 
the  courts  must  at  once  respond.  Legislation  of  the  most  radical, 
the  most  revolutionary  character  may  thus  be  forced  upon  the 
country,  not  only  without  popular  assent  but  against  the  will  of  the 
great  mass  of  the  people. 


THE   CONSTITUTION   AND   ITS   MAKERS.  23 

The  framers  of  the  Constitution  made  it  in  the  name  and  for  the 
benefit  of  the  people  of  the  United  States;  for  the  entire  people,  not 
for  any  fraction  or  class  of  the  people.  They  did  not  make  the  Con- 
stitution for  the  voters  of  the  United  States.  They  recognized  that 
the  popular  will  could  only  be  expressed  by  those  who  voted  and  that 
the  expression  of  the  majority  must  in  the  end  be  final.  But  they 
restrained  and  made  deliberate  the  action  of  the  voters  by  the  limita- 
tions placed  upon  the  legislative,  the  executive,  and  the  judicial 
branches,  so  that  the  rights  of  all  the  people  might  be  guarded  and 
protected  against  ill-considered  action  on  the  part  of  those  who  vote. 
Those  who  now  seek  to  alter  the  fundamental  principles  of  the  Consti- 
tution start  with  a  confusion  of  terms  and  a  false  proposition.  They 
talk  glibly  of  "  the  people."  But  they  mean  the  voters,  and  the  voters 
are  not  the  people,  but  a  small  portion  of  the  people,  not  more  than  a 
fifth  or  a  sixth  part,  who  are  endowed  by  law  with  the  power  to 
express  what  is  to  be  regarded  as  the  popular  will.  The  legal  voters  are 
the  representatives  and  trustees  of  all  the  inhabitants  of  the  country, 
of  all  those  under  twenty-one  to  whom  the  future  belongs,  of  all  the 
women,  of  all  resident  aliens,  and  of  all  persons  not  qualified  to  vote. 
They  are  the  instrument,  the  only  practicable  instrument,  for  reach- 
ing an  expression  of  the  popular  will ;  but  they  are  not  the  people  as  a 
whole,  for  whom  and  for  whose  protection  the  Constitution  was  made. 
It  was  for  the  protection  of  the  people  that  the  makers  of  the  Consti- 
tution made  provisions  to  assure  deliberate  movement  and  to  pre- 
vent hasty,  passionate,  or  ill-considered  action.  The  purpose  of  those 
who  would  destroy  the  present  Constitution  is  to  remove  these  safe- 
guards and  for  the  "people"  of  the  Constitution  substitute,  without 
check,  hindrance,  or  delay,  the  will  of  the  voters  of  the  moment. 
They  are  blind  to  the  awful  peril  of  turning  human  nature  loose  to 
riot  among  first  principles. 

But  they  do  not  stop  even  there.  Under  the  system  they  propose 
a  small  mmority  of  the  voters,  who  are  themselves  a  minority  of  the 
people,  are  to  have  unlimited  power  to  compel  the  passage  of  laws. 
A  small  minority  will  be  able  and,  as  the  experience  of  the  voluntary 
referendum  shows,  will  in  almost  every  instance  contrive  to  place 
laws  upon  the  statute  book  which  the  mass  of  the  people  really  do 
not  desire.  A  small  minority  can  force  the  recall  of  a  judge  and 
drive  him  from  the  bench.  The  new  system  places  the  actual  power 
in  the  hands  of  minorities,  generally  small,  always  interested  and 
determined.  Instead  of  government  "by  the  people  and  for  the 
people"  we  shall  have  government  by  factions,  with  all  the  turbu- 
lence, disorder,  and  uncertainty  that  the  rule  of  factions  ever  implies. 
Such  a  system  is  a  travesty  of  popular  government  and  the  antipodes 
of  true  democracy.  Under  the  same  conditions  of  human  nature, 
with  no  element  of  decision  lacking  then  that  we  have  now,  the 
framers  of  the  Constitution  established  the  system  under  which  we 
have  nourished  and  rejected  that  which  it  is  now  proposed  to  set  up 
and  which  all  experience  had  shown  to  be  a  failure.  Their  system 
embodied  in  the  Constitution  has  proved  its  efficacy.  It  has  worked 
well  and  it  has  been  an  extraordinary  success.  The  other,  burdened 
with  the  failures  of  centuries,  has  always  trodden  the  same  path  which 
revolves  in  the  well-worn  vicious  circle  from  democracy  to  anarchy, 
from  anarchy  to  despotism,  and  then  by  slow  and  painful  steps  back 
to  the  high  levels  of  an  intelligent  freedom  and  an  ordered  liberty. 

448783 


24  THE   CONSTITUTION   AND  ITS   MAKERS. 

Our  ancestors  sought  to  make  it  as  impossible  as  human  ingenuity 
could  devise  to  drag  democracy  down  by  the  pretense  of  giving  it  a 
larger  scope.  We  are  asked  to  retrace  our  steps,  adopt  what  they 
rejected,  take  up  that  which  has  failed,  cast  down  that  which  has 
triumphed,  and  for  government  by  the  people  substitute  the  rule  of 
factions  led  by  the  eternal  and  unwearied  champions  who  in  the  name 
of  the  people  seek  the  promotion  which  they  lack. 

Such  are  the  questions  which  confront  us  to-day,  amazing  in 
their  existence  under  a  Constitution  with  such  a  history  as  ours. 
The  evils  which  it  is  sought  to  remedy  are  all,  so  far  as  they  actually 
exist,  curable  by  law.  No  doubt  evils  exist;  no  doubt  advance, 
reform,  progress,  improvements  are  always  needed  as  conditions 
change,  but  they  can  all  be  attained  by  law.  There  is  no  need  to 
destroy  the  Constitution,  to  wreck  the  fundamental  principles  of 
democracy  and  of  the  Bill  of  Rights  embodied  in  the  first  ten  amend- 
ments, in  order  to  attain  to  an  amelioration  of  conditions  and  to  a 
wider  and  more  beneficent  social  state  when  statutes  can  effect  all 
and  more  than  is  demanded.  It  is  not  necessary  to  scuttle  a  noble 
ship  in  order  to  rid  her  of  rats;  it  is  not  imperative  to  burn  the 
strong,  well-timbered  house  which  has  sheltered  successive  genera- 
tions because  there  is  a  leak  in  the  roof;  it  is  only  a  madman  who 
would  hurl  down  in  blackened  ruin  a  noble  palace,  the  work  and 
care  of  centuries,  because  a  stain  easily  erased  may  now  and  then 
be  detected  upon  the  shining  whiteness  of  its  marble  walls. 

All  these  questions,  all  these  reforms  and  revolutions  so  glori- 
ously portrayed  to  us,  it  can  not  be  said  too  often,  are  very  old. 
Their  weakness  is  not  that  they  are  new  but  that  they  are  time  worn 
and  outworn.  The  voices  which  are  now  crying  so  shrilly  that  we 
must  destroy  our  Constitution  and  abandon  ail  our  principles  of 
government  nave  been  heard — 

In  ancient  days  by  Emperor  and  clown. 

They  are  as  old  as  human  discontent  and  human  impatience  and 
are  as  ancient  as  the  flattery  which  has  followed  sovereign  authority 
from  the  days  of  the  Pharaohs  to  our  own. 

There  is  a  familiar  story,  which  we  all  heard  as  children,  of  the 
courtiers  of  Knut,  King  of  England,  a  mighty  warrior  and  a  wise  man, 
not  destitute  evidently  of  humor.  These  courtiers  told  the  King  that 
the  tide  would  not  dare  to  come  in  against  his  command  and  wet  his 
feet.  So  he  bade  them  place  his  chair  near  the  edge  of  the  sea  and  the 
main  came  silent,  flooding  in  about  him,  and  you  all  remember  the 
lesson  which  the  King  read  to  his  flatterers.  Many  kin<p  have  come 
and  gone  since  then,  and  those  who  still  remain,  now  for  the  most 
part  walk  in  fetters.  But  the  courtier  is  eternal  and  unchanged. 
He  fawned  on  Pharaoh  and  Caesar  and  from  their  day  to  our  own  has 
always  been  the  worst  enemy  of  those  he  flattered.  He  and  his 
fellows  contended  bitterly  in  France  for  the  privilege  of  holding  the 
King's  shirt,  and  when  the  storm  broke  which  they  had  done  so  much 
to  conjure  up,  with  few  exceptions  they  turned  like  cravens  and  fled. 
New  courtiers  took  the  vacant  places.  They  called  themselves 
friends  of  the  people,  but  their  character  was  unaltered.  They 
flattered  the  mob  of  the  Paris  streets,  shrieking  in  the  galleries  of  the 
convention,  with  a  baseness  and  a  falsehood  surpassing  even  those  of 
their  predecessors  who  had  cringed  around  the  throne.     Where  there 


THE   CONSTITUTION   AND   ITS   MAKERS.  25 

is  a  sovereign  there  will  bo  courtiers,  and  too  often  the  sovereign  has 
listened  to  the  courtiers  and  turned  his  back  on  the  loyal  friends  who 
were  ready  to  die  for  him  but  would  not  lie  to  him.  Too  often  has  the 
sovereign  forgotten  that,  in  the  words  of  one  of  the  most  penetrating 
and  most  brilliant  of  modern  English  essayists,  "a  gloomy  truth  is  a 
better  companion  through  life  than  a  cheerful  falsehood."  Across 
the  centuries  come  those  dangerous  and  insidious  voices  and  they 
sound  as  loudly  now  and  are  as  false  now  as  ever.  Thev  are  always  at 
hand  to  tell  the  sovereign  that  at  his  feet  the  tide  will  cease  to  ebb 
and  flow,  that  the  laws  of  nature  and  economic  laws  alike  will  at  his 
bidding  turn  gently  and  do  his  will.  And  the  tides  move  on  and  the 
waves  rise  and  the  sovereign  who  has  listened  to  the  false  and  selfish 
voices  is  submerged  in  the  waste  of  waters,  while  the  courtiers  have 
rushed  back  to  safety  and  from  the  heights  above  are  already  shouting 
"The  king  is  dead!     Long  live  the  king!" 

I  have  a  deep  reverence  for  the  great  men  who  fought  the  Revolu- 
tion and  made  the  Constitution  but  I  repeat  that  I  as  little  think  that 
all  wisdom  died  with  them  as  I  do  that  all  wisdom  was  born  yester- 
day. When  they  dealt  with  elemental  questions  and  fundamental 
principles,  the  same  yesterday,  to-day,  and  forever  in  human  his- 
tory, 1  follow  them  because  they  have  proved  their  wisdom  by  their 
success.     I  am  not  ready  to  say  with  Donne — 

We  are  scarce  our  father's  shadow  cast  at  noon — 

but  I  am  more  than  ready;  I  profoundly  believe  that  we  should  cherish 
in  our  heart  of  hearts  the  noble  and  familiar  words  of  the  wise  son 
of  Sirach: 

Let  us  now  praise  famous  men  and  our  fathers  that  begat  us.  The  Lord  hath  wrought 
great  glory  by  them  through  his  great  power  from  the  beginning.  Leaders  of  the  peo- 
ple by  their  counsels  and  by  their  knowledge  of  learning  meet  for  the  people;  wise 
and  eloquent  in  their  instructions;  all  these  were  honored  in  their  generations  and 
were  the  glory  of  their  times. 

There  be  of  them,  that  have  left  a  name  behind  them,  that  their  praises  might  be 
reported.  And  some  there  be  which  have  no  memorial;  who  are  perished  as  though 
they  had  never  been;  and  are  become  as  though  they  had  never  been  born;  and  their 
children  after  them.  But  these  were  merciful  men  whose  righteousness  hath  not 
been  forgotten.  With  their  seed  shall  continually  remain  a  good  inheritance  and  their 
children  are  within  the  covenant. 

Their  seed  standeth  fast  and  their  children  for  their  salses.  Their  seed  shall  remain 
forever  and  their  glory  shall  not  be  blotted  out.  Their  bodies  are  buried  in  peace; 
but  their  name  liveth  forevermore.  The  people  will  tell  of  their  wisdom  and  the 
congregation  will  show  forth  their  praise. 

o 


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